July 17, 2009

On 1 July the Residential Tenancies Act 1994 (“RTA”) was repealed and replaced with the Residential Tenancies and Rooming Accommodation Act 2008 (“RTRAA”).

The RTRAA now applies to all Qld residential tenancy agreements. It also has implications in relation to the marketing of tenanted homes.

The new Act applies to rented houses, units, townhouses, caravans and other movable dwellings.

How the RTRAA affects marketing

Because an owner and their agent must obtain the tenants’ written consent to:

  • conduct an inspection outside the hours of 8am to 6pm or on a Sunday or public holiday;
  • hold an open house;
  • hold an on-site auction; or
  • use photos showing any tenant possessions including furniture.

Sales agents will have to negotiate with tenants for their approval as to any of these things.

It would seem that such consent can be included in the tenancy agreement itself or contained on a separate “consent” signed by the tenant at the same time as a tenancy agreement. It is however possible for a tenant to withdraw such blanket consent in which event particular consents would need to be negotiated.

The rules relating to entry for inspections etc in the RTRAA are very similar to those in the old RTA. As before, it is a pre-requisite for marketing inspections that the owner or agent gives the tenant a notice of intention to sell. Also, subsequently marketing inspections are only allowed if a “reasonable time” has elapsed since the previous inspection.

Inspections for marketing also require that the tenant be given an Entry Notice (Form 9) at least 24 hours prior to the proposed inspection time, unless the tenant agrees to a shorter period.

As before, an Entry Notice (Form 9) is required for all inspections except those in an emergency or where the property is in imminent danger. A general inspection requires 7 days prior notice to the tenant but for most other inspections, including those for repairs or marketing, 24 hours is sufficient. A new requirement is that a 2-hour inspection window must be specified in the Entry Notice unless the owner or agent is accompanied by another person e.g. prospective buyer, tradesman. Entry must be commenced during the period but the inspection can continue beyond until the inspection is completed.

Owners must now give tenants 2 months notice to leave the property without grounds. This applies to both fixed-term and periodic tenancies. Thus if the property is sold while a tenancy is current but the buyer requires vacant possession, the contract will have to allow for settlement two months after the date the tenant is given notice. Naturally it is possible to negotiate a shorter period with a tenant but to be safe, this should be clearly documented.

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